The Australians are calling it a common sense outcome, New Zealanders say it’s a huge blow in the battle to protect taonga species – and all native flora and fauna are now at risk.

Kiwi honey producers have lost the latest round in the fight over mānuka honey, after a bid to trademark it was rejected by the Intellectual Property Office of New Zealand this week.

The office called it “a trans-Tasman tussle of extraordinary proportions”, and said in its ruling that it was “one of the most complex and long-running proceedings” it has handled.

Australian honey producers say it’s time for “our friends in New Zealand to put down their guns” and work together to supply a global market, expected to be worth more than $1 billion in a few years. 

New Zealand producers have been trying to trademark the term since 2015 and the latest decision follows similar rulings in the UK and EU not to grant trademark status.

But the local industry says the fight isn’t over.

“Not at all,” says Richard Rennie, a Farmers Weekly journalist. 

“I think it’s probably hardened the resolve of the industry to push on – in some way, shape, or form – to distinguish New Zealand mānuka honey.”

Māori patent lawyer Lynell Tuffery Huria, who has been involved in the case, was gutted by the decision. She says it highlights a gap in intellectual property legislation that has long been known about.

“What it does confirm is that the intellectual property system and regime is not designed to protect our taonga. That is well known, both here in New Zealand and around the world,” Huria says.      

In her lengthy ruling, the assistant commissioner for trademarks, Natasha Alley, said while tikanga [customary] principals were relevant, they did not meet the requirements of distinctiveness under Trade Marks Act.

Rennie explains that Alley believed the phrase, mānuka honey, was not distinct enough under the law to be quarantined or to be encircled for protection.

She noted the applicants had not done enough to distinguish the differences between the New Zealand offering and offerings elsewhere, particularly Australia.

But Alley also expressed “considerable sympathy” for New Zealand producers, because of mānuka honey’s cultural significance. 

“She acknowledged the law that she had to work under really lacks this ability to acknowledge the taonga value of something like mānuka,” says Rennie.

The assistant commissioner said the term was not widely used in Australia until after New Zealand’s mānuka honey industry took off – well after the antibacterial properties were discovered in New Zealand in the 1980s.

Rennie says New Zealand producers didn’t move quickly enough to protect it. 

“Should we not have moved earlier and sooner to protect that, once we knew about it, and lock it down earlier, a little bit like maybe we should have done with green kiwifruit with the Chileans back in the 70s and 80s?”

Huria says the decision raises the need for urgency in creating a regime that helps “protect our taonga species”.

She tells The Detail that a tikanga-based framework was proposed by the original claimants from Wai262, a Waitangi Tribunal claim about the recognition of rights around traditional Māori knowledge and customs.

The claimants’ descendants are looking at setting up a taonga framework; there have also been calls for a special commission for mātauranga Māori, or Māori knowledge; and the United Nations Declaration on the Rights of Indigenous Peoples refers to the protection of intellectual property.

“These regimes are known, they have been talked about for many years and we need them otherwise our taonga are going to be appropriated, and we are going to continue to have other taonga species appropriated by interests internationally,” says Huria.

“All our native flora and fauna are at risk because of this decision.”

Hear more about the buzz over the term mānuka honey in the full podcast episode.

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Sharon Brettkelly is co-host of The Detail podcast.

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